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Zagal v. State

Court of Appeals of Indiana

July 24, 2019

Pedro Rayo Zagal, Appellant-Petitioner,
v.
State of Indiana, Appellee-Respondent

          Appeal from the Elkhart Superior Court The Honorable Charles Carter Wicks, Judge Trial Court Cause No. 20D05-1809-PC-46

          Attorneys for Appellant Nancy A. McCaslin McCaslin & McCaslin Elkhart, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General Chandra K. Hein Deputy Attorney General Indianapolis, Indiana

          Vaidik, Chief Judge.

         Case Summary

         [¶1] In 2007, Pedro Rayo Zagal pled guilty to possession of cocaine. More than ten years later, he filed a petition for post-conviction relief alleging that his trial counsel was ineffective for failing to advise him that his guilty plea carried a risk of deportation, and the post-conviction court denied him relief. Because Rayo Zagal admitted that the advisements of rights at his initial hearing and in his plea agreement informed him that he could be deported as a result of his guilty plea and conviction and that he read these advisements, we affirm the post-conviction court.

         Facts and Procedural History

         [¶2] Rayo Zagal came to the United States from Mexico in 1994, when he was seven years old. Rayo Zagal is in the country under the United States Department of Homeland Security's Deferred Action for Childhood Arrivals (DACA) program.

         [¶3] On January 30, 2007, the State charged Rayo Zagal, then nineteen years old, with Class D felony possession of cocaine. At his February 2 initial hearing, Rayo signed an Advisement of Rights and Penalties, which contained the following advisement: "If you are an illegal alien you may be deported if convicted of a crime." Appellant's App. Vol. II p. 16.

         [¶4] In April 2007, the State and Rayo Zagal, who was represented by counsel, entered into a written plea agreement. The agreement stated that Rayo Zagal was born in Mexico and a citizen of Mexico. Id. at 19. The agreement contained a section entitled "Defendant's Rights." Rayo Zagal wrote his initials next to the following provision:

The defendant understands that if he/she is not a legal citizen of the United States, he/she may be deported as a result of his/her plea of guilty.

Id. at 21. In addition, Rayo Zagal wrote his initials next to the acknowledgments that he had "received and read, or had read to him," the plea agreement and that the plea agreement "was translated into Spanish, my native language, before I signed it." Id. at 20, 22. Both Rayo Zagal and his trial counsel then signed the plea agreement.

         [¶5] At the guilty-plea hearing, Rayo Zagal acknowledged that he read over the plea agreement "carefully," understood what he read, and initialed and signed it. Tr. pp. 4-5. The trial court noted that Rayo Zagal was born in Mexico and a citizen of Mexico but was "completely fluent in English." Tr. p. 12. The court took the plea under advisement and set the matter for sentencing.

         [¶6] At the sentencing hearing in May 2007, the trial court explained that given Rayo Zagal's age and immaturity, it "was reluctant to hang a felony conviction on [him] at this point." Id. at 22. The court told Rayo Zagal that if he was willing to accept "certain conditions," it was "willing to continue sentencing for a while to give [him] a chance to maybe avoid a felony conviction." Id. Rayo Zagal accepted the conditions, including that he stay away from drugs and alcohol, submit to chemical tests, ...


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